Kerala High Court
A.K.Stephen vs State Of Kerala
Bench: C.N.Ramachandran Nair, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 28TH DAY OF MARCH 2012/8TH CHAITHRA 1934
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WP(C).No. 19819 of 2010 (S)
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PETITIONER :
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A.K.STEPHEN, PRESIDENT,
KERALA MALSYA THOZHILALI CONGRESS, CHERTHALA
ALAPPUZHA DISTRICT.
BY ADVS.SRI.N.D.PREMACHANDRAN
SRI.D.AJITHKUMAR
SMT.LALIZA.T.Y.
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM
2. THE PROJECT DIRECTOR,
TSUNAMI REHABILITATION PROGRAMME
THIRUVANANTHAPURAM
3. THE DISTRICT COLLECTOR, ALAPPUZHA.
4. THE DISTRICT PANCHAYAT PRESIDENT,
ALAPPUZHA.
5. THE ADVISOR (MINERALS & T.R.P),
PLANNING COMMISSION, GOVERNMENT OF INDIA
YOJANA BHAVAN, NEW DELHI.
*RESPONDENT NO. 5 STRUCK OFF SUOMOTU VIDE ORDER DATED 1-7-10 IN
WP(C) NO. 19819/2010 - S.
...2/-
WP(C).No. 19819 of 2010 (S) -2-
*ADDL. R6 IMPLEADED
*6. THE COMPTROLLER AND AUDITOR GENERAL OF INDIA,
9, DEEN DAYAL UPADYAY MARG,
NEW DELHI - 110 124.
*IS IMPLEADED AS ADDITIONAL RESPONDENT NO. 6 VIDE ORDER DATED
28.3.2012 IN I.A. NO. 20183/2011.
R1 TO R3 BY SPL. GOVT. PLEADER SMT. SUSHEELA BHAT
R6 BY ADVS. SRI.T.P.M.IBRAHIM KHAN, ASGI
SRI.P.PARAMESWARAN NAIR, ASGI
SRI. P. SANJAY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-03-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
...3/-
WP(C).No. 19819 of 2010 (S)
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1 : A COPY OF THE COVERING LETTER DATED 17.12.05.
EXT.P1(a) : A COPY OF RECOMMENDATION DATED 18.1.2006 OF THE MP
DR. K.S. MANOJ.
EXT.P2 : A COPY OF THE ABSTRACT OF THE PROJECT DTD. 15.3.05.
EXT.P3 : A COPY OF THE LETTER DATED 16.6.2006.
EXT.P4 : A COPY OF THE LETTER DATED 6.7.2006.
EXT.P5 A COPY OF THE COMMUNICATION DATED 12.7.06.
EXT.P6 A COPY OF LETTER DATED 1.8.2006.
EXT.P7 A COPY OF THE PROJECT PROPOSAL DATED 3.8.06 AT AN ESTIMATED
COST OF RS. 22.74 CRORES.
EXT.P8 A TRUE COPY OF THE COMMUNICATION SHOWING THE ALLOTMENT
OF FUNDS.
EXT.P9 A COPY OF THE COMMUNICATION DATED 15.9.06.
EXT.P10 A COPY OF THE ORDER DATED 6.10.06.
EXT.P11 A COPY OF THE REVISED ESTIMATES.
EXT.P12 A COPY OF THE ORDER DATED 14.11.2006.
EXT.P13 COPY OF THE MINUTES OF THE MEETING DTD. 1.3.07.
(Contd...)
WP(C).No. 19819 of 2010 (S)
EXT.P14 AN ABSTRACT OF THE REVISED PROJECT.
EXT.P15 A COPY OF THE REPRESENTATION DATED 23.4.08.
EXT.P16 A COPY OF THE SAID COMMUNICATION DATED 24.4.2008 OF THE 5TH
RSPONDENT.
EXT.P17 A COPY OF THE COMMUNICATION DATED 20.6.2008 OF THE FIRST
RSPONDENT.
EXT.P17(a) ENGLISH TRANSATION OF EXT.P17 DATED 20.6.2008.
EXT.P18 A COPY OF THE COMMUNICATION DATED 9.7.2008 OF THE CHIEF
ENGINEER.
EXT.P19 A COPY OF THE REPLY DATED 11.7.2008 OF THE CHIEF ENGINEER,
HARBOUR ENGINEERING.
EXT.P19(a) COPY OF ENGLISH TRANSLATION OF EXT.P9 DATED 11.7.2008.
EXT.P20 A COPY OF THE COMMUNICATION DATED 22.10.08.
EXT.P21 A COPY OF REPORT DATED 23.10.2008.
EXT.P22 A COPY OF THE REPORT DATED 5.3.2009 OF THE 3RD RESPONDENT
ALONG WITH THE ANNEXURE.
EXT.P22(a) COPY OF ENGLISH TRANSLATION OF EXT.P22 DATED 5.3.2009.
EXT.P23 COPY OF THE STATEMENT DATED 8.6.2009 FILED BY THE
RESPONDENTS 1 & 2.
EXT.P24 COPY OF THE ADDITIONAL STATEMENT DATED 10.7.2009 FILED BY THE
RESPONDENTS 1 & 2.
EXT.P25 COPY OF THE STATEMENT FILED BY THE 3RD RESPOONDENT.
(Contd...)
WP(C).No. 19819 of 2010 (S)
EXT.P26 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C)
NO. 14426/2009 DATED 7.9.2009.
EXT.P27 A COPY OF THE COMMUNICATION DATED 12.2.2007.
EXT.P28 A COPY OF THE LETTER DATED 26.2.2007
EXT.P29 A COPY OF THE COMMUNICATION DATED 15.2.2007.
EXT.P30 A COPY OF COMMUNICATION DATED 26.8.2008.
EXT.P31 COPY OF THE DETAILS OF WORKS TO BE DONE AS PER ITEM
NO. 1 AND 2 OF EXT.P14 OF THE REVISED PROJECT SUBMITTED
BY THE DISTRICT RURAL DEVELOPMENT AGENCY, ALLEPEY.
EXT.P32 COPY OF THE CERTIFICATE DATED 3.3.2012 ALONG WITH THE
STATEMENT.
EXT.P33 COPY OF AN EXTRACT OF REPORTED SUBMITTED BY THE
COMPTROLLER AND AUDIT GENERAL OF INDIA CONTAINING
THE RESULT OF PERFORMANCE AUDIT OF TSUNAMI RELIEF
AND REHABILITATION FOR THE PERIOD 2005-2006.
RESPONDENT'S EXHIBITS & ANNEXURES :
EXT.R1(a) : COPY OF THE REPLY RECEIVED FROM THE CENTRAL PLANNING
COMMISSION.
EXT.R1(b) COPY OF THE MINUTES OF THE MEETING OF EMPOWERED
GROUP OF UNION MINISTERS CONDUCTED BY THE
GOVERNMENT OF INDIA ON 11.02.2010.
EXT.R1(c) COPY OF THE REVISED PROPOSAL SUBMITTED BY THE
GOVERNMENT OF KERALA TO THE PLANNING COMMISSION,
UNION OF INDIA.
EXT.R1(d) THE DETAILS REGARDING THE WORK EXECUTED USING RS.
92.51 CRORES EAR-MARKED V(a), V(b) OF THE REVISED
PROPOSAL.
(Contd...)
WP(C).No. 19819 of 2010 (S)
EXT.R1(e) COPY OF THE LETTER FROM PLANNING COMMISSION
DATED 16.04.2007.
EXT.R1(f) COPY OF THE RELEVANT PAGE OF EGOM MINUTES.
EXT.R1(g) COPY OF THE STATEMENT OF FUND ALLOCATION AND
EXPENDITURE.
EXT.R1(h) COPY OF THE DETAILS OF PHYSICAL WORKS UNDERTAKEN
AND COMPLETED UNDER TEAP.
EXT.R1(i) COPY OF THE DISTRICT-WISE DETAILS OF HOUSES
CONSTRUCTED/UNDER CONSTRUCTION.
EXT.R1(j) COPY OF RELEVANT PAGE OF EGOM MINUTES.
EXT.R1(k) COPY OF AN ABSTRACT OF ALLOCATION, FUND ALLOTTED
AND WORKS UNDERTAKEN.
EXT.R1(l) COPY OF THE DETAILED STATEMENT OF NGO'S INVOLVED,
PROJECTS UNDERTAKEN, FINANCIAL EXPENDITURE AND
NUMBER OF BENEFICIARIES.
ANNEXURE - R1(I) COPY OF THE ESTIMATE SUBMITTED TO THE LOK SABHA BY
THE LAND REVENUE COMMISSIONER.
ANNEXURE - R1(II) COPY OF THE PROPOSAL FOR REQUIRED FUNDS
SUBMITTED TO GOVERNMENT OF INDIA.
ANNEXURE - R1(III) COPY OF THE LETTER OF THE PLANNING COMMISSION OF
INDIA TO SUBMIT LOCATION WISE PHYSICAL FINANCIAL AND
SECTORAL PROGRAMMES.
ANNEXURE - R1(IV) COPY OF THE RELEVANT PAGE OF THE MINUTES OF THE
EMPOWERED GROUP OF MINISTERS MEETING HELD ON
11.2.2010.
ANNEXURE - R1(V) QUARTERLY PROGRESS REPORT OF TRP ON 30.6.2011.
(Contd...)
WP(C).No. 19819 of 2010 (S)
ANNEXURE - R1(VI) COPY OF THE DETAILED REPORT SUBMITTED BEFORE THE
SUBJECT COMMITTEE OF THE KERALA LEGISLATURE
ASSEMBLY ON 23.2.2011.
ANNEXURE - R1(VII) COPY OF THE LETTER DATED 16.4.2007 ISSUED BY THE
PLANNING COMMISSION.
ANNEXURE - R1(VIII) COPIES OF THE DOCUMENTS EVIDENCING VARIOUS
ALLOCATION FOR TSUNAMI REHABILITATION PROGRAMME
BY THE GOVERNMENT OF INDIA AT VARIOUS STAGES.
ANNEXURE - R1(IX) COPY OF THE ALLOCATION, FUND RELEASES TO THE
DEPARTMENTS, BALANCE FUND TO BE RELEASED TO THE
DEPARTMENTS UNDER TRP AS ON 28.9.2011.
//TRUE COPY//
P.A. TO JUDGE
Mn
C.N.RAMACHANDRAN NAIR & K.VINOD CHANDRAN, JJ.C.R.
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WP(C) No.19819 of 2010
....................................................................
Dated this the 28th day of March, 2012.
J U D G M E N T
Ramachandran Nair, J.
This is a Public Interest Litigation filed by the President, Kerala Malsya Thozhilali Congress, Cherthala alleging diversion and misutilisation of most of the Tsunami Rehabilitation funds of more than Rs.1400 crores granted by the Central Government specifically for the purpose of rehabilitation of Tsunami victims and for undertaking rehabilitation works in Tsunami affected areas. The petitioner has raised a specific contention that in spite of identifying certain rural roads in the coastal area at Alappuzha for reconstruction under the Tsunami Rehabilitation Scheme and even though the Planning Commission approved the same, nothing is done to improve the roads. Since the total amount allotted by the Central Government was as much as 1441.75 crores, we called for a detailed statement of application of WP(C) No.19819/2010 -2- funds by the State Government for the purposes for which funds were released by the Central Government. Even though details of the projects executed and the utilisation of the entire funds were called for, the statement filed mainly shows only department-wise allocation of the funds to various authorities and Districts for Tsunami rehabilitation work. It is seen from the report that massive funds are allotted to almost every Department for purposes unrelated to Tsunami rehabilitation which can be only rehabilitation of the victims or for development of Tsunami affected areas. Tsunami affected only the coastal belt of Kerala mainly from Quilon to Edavanakkadu in Ernakulam District covering only three Districts. However, it is seen that funds are allotted to each and every Department and to every District, including to Co- operative Department to write off debts of Societies which have become bankrupt. While the case of the petitioner is that the allocation and appropriation of funds were completely defeating the purposes for which funds were sanctioned by the Central Government, learned Special Government Pleader appearing for the State Government submits that guidelines of WP(C) No.19819/2010 -3- Central Government and Planning Commission have been followed and appropriations were made with their consent. However, the statement filed by the Assistant Solicitor General on behalf of the Central Government does not support this fully. The Central Government not only confirms allotment and release of Rs.1441.75 crores under different heads, they have clearly stated that the funds were given specifically for rehabilitation of Tsunami victims and utilisation of the same for undertaking rehabilitation works in the Tsunami affected areas. It is not clear from the statement as to whether there is any auditing or supervision by the Central Government or by Planning Commission as to whether funds were utilised for the purposes for which it is granted.
2. After hearing both sides and after going through the details produced before us, we are prima facie satisfied that there is diversion of massive funds for purposes other than anything relating to Tsunami affected people or areas. As already stated, Tsunami affected people and areas are mainly in three coastal Districts of Quilon, Alappuzha and Ernakulam and if as much as above Rs.1440 crores were spent there WP(C) No.19819/2010 -4- would have been remarkable improvement by way of housing for the people living in the mouth of the sea, restoration of damaged roads, drinking water facility, schooling and all such other facilities. We do not think anybody going to the coastal areas of these Districts can see anything different from the immediate post Tsunami conditions. So much so, what we could understand is that Tsunami was only an occasion for the State Government to collect massive funds from the Central Government for utilisation for purposes of their choice mostly unrelated to Tsunami. We do not think the position is different even when the Government gets flood relief or drought relief. However, there is no scope for detailed scrutiny and judicial review in this matter by this Court because it is essentially a matter concerning administration and it is for the central agencies to make the state account for the application of the funds for the specific purposes for which those were granted.
3. We find force in the contention of the petitioner that whatever be the diversion of funds for other purposes, there is no escape for the State Government but to raise funds for WP(C) No.19819/2010 -5- repairing and restoration of affected roads and for providing housing to the Tsunami affected people, who are still living in deplorable conditions in the coastal area. One way of permanently saving the people living in the beaches is to rehabilitate them in interior coastal areas in multi storied buildings to protect them from devastation from the ravages of the sea in future, and to ensure their proximity to the sea to carry on their traditional profession of fishing but without worry for Tsunamies in the future.
4. These are certainly matters which the policy making authorities in the Government should take note of. However, we feel that the Government is certainly accountable to the Tsunami affected people for the utilisation of funds because they and their areas were the beneficiaries of the funds granted by the Central Government. The only solution we find is to direct the Comptroller and Auditor General to conduct auditing of the work done and to make his recommendations about the application and misapplication of funds, for appropriate action by the authorities concerned. If funds are diverted, nothing bars the CAG to suggest to the State WP(C) No.19819/2010 -6- Government to recoup the funds and carry out relief works, which were supposed to be carried out with the funds originally granted by the Central Government. There will be a specific direction to the State Government to address the problem of the road restoration work suggested by the petitioner, which is already taken up by the Government, whether it be under the rehabilitation scheme or otherwise.
Asst. Solicitor General will forward a copy of the judgment to the CAG, who is impleaded as an additional respondent on petitioner's request.
This Writ Petition is disposed of as above.
(C.N.RAMACHANDRAN NAIR, JUDGE) (K.VINOD CHANDRAN, JUDGE) jg